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Thursday, July 20, 2017

Opinions About Giving Legal Opinions

Nowadays, news reports resemble the sorts of crazy hypotheticals that law professors love (and law students loathe). And since we love far-fetched hypotheticals, many law professors have taken to giving our legal opinions about the political news item of the day.

In addition to having our own opinions about the latest news, law professors are often confronted by the opinions of their colleagues. Newspapers, blogs, and Twitter are full of divergent opinions on these topics, and many of us end up having strong opinions about our colleagues’ opinions.

Given the ubiquity of legal opinions (and opinions about those legal opinions), I’d like to offer five opinions about how I think law professors ought to share their legal opinions with the public.

First, be careful when you offer opinions that are available to the general public. It used to be that law professors had to wait for a media call or have an op ed accepted in order to share their views on the legal topic of the day. Not so anymore. Blogs and Twitter allow us to give our opinions easily – perhaps too easily at times. And although these platforms might seem like social media, it is important to remember that the opinions you give in these fora are public statements. Even if you have only 70 followers, and most of those are your family and college friends, something that you tweet could be shared and read by total strangers with no background in the law and no sense of who you are.

I say “be careful,” not only because you are stuck with whatever reputational fall out might occur from a publicly expressed opinion, but also because your public statements come with an implicit aura of authority. When we identify ourselves as law professors, that signals that we are experts whose opinions ought to be taken seriously. We should remind ourselves about that explicit claim of expertise when offering a public opinion. And if you aren’t actually claiming that expertise—say if you are offering an opinion outside of your field—make sure to offer that qualification, and seriously consider whether you ought to share the opinion publicly at all.

Second, certainty when expressing a legal opinion is rarely warranted. Just as we often respond to student questions by saying “it depends,” we should also acknowledge the same uncertainty in our public statements. I’ve found it useful, for example, to remind myself that a legal opinion is no more than a prediction about how a court will rule in a given situation. I don’t mean to suggest that legal opinions should be nothing more than psychological predictions about how certain judges will rule. (I personally find those sorts of opinions a little tedious and somewhat presumptuous.) But most legal opinions are offered in circumstances that are not identical to prevailing Supreme Court case law, and so all that we are offering is a guess about how courts will decide a case using existing statutes and case law.

There is real temptation to project certainty. It may make us feel more confident to sound certain. Or we may want to impress the journalist who has called us. Sometimes reporters are just looking for a sound bite to drop into their article, and at least some of them want you to speak definitively in that sound bite. But a journalist’s job is to inform the public; and if we make it seem as though the law is clear in areas where it isn’t, then we are misleading the reporter (and in turn, the public) rather than informing them.

Third, be willing to rethink your opinions and to admit your mistakes. The law professors that I admire the most are those who have changed their minds. For what it is worth, this is easier to do if you don’t initially express your opinions with too much certainty. If you couch your opinion in terms of “here is what I think at this point,” you leave your ego plenty of room to walk away from that opinion after further reflection or after new information comes to light.

Fourth, be measured and thoughtful when you disagree with the legal opinions expressed by others. Law professors are human, and they are more likely to engage with you on the substance of an issue if you are respectful in your disagreement. I don’t just mean avoid being a jerk. I mean you should go out of your way to frame your disagreement terms that couldn’t possibly be mistaken as hostile or aggressive. It is easy to mistake tone online, so you are better off saying “I really enjoyed this interesting post. Do you have any thoughts on X?” where X is a piece of information that contradicts a factual point the other professor made, or where X is an opinion by someone else that goes the other way. A less conciliatory tone is likely to get the other professor’s hackles up, and if someone’s hackles are up, then he or she is less likely to engage your substantive concerns.

Fifth, don’t assume that people are acting in bad faith when they give legal opinions. In particular, please stop accusing people of giving legal opinions only because those opinions happen to align with their political preferences. This sort of finger pointing gives further ammunition to non-lawyers who insist that law and politics are indistinguishable. That isn’t true, and it is extremely corrosive to the legal academy when those legal naysayers can point to law professors accusing each other of partisan hackery in their expert opinions.

We should, of course, all be careful to push ourselves on our own opinions to ensure that those opinions are impartial predictions of legal outcomes rather than partisan preferences. (There is evidence suggesting that confronting our biases can lessen or eliminate their influence.) But we should assume that our colleagues are smart enough and honest enough to have done this themselves. And if you are genuinely worried that someone’s opinion can’t be supported as anything other than political wishful thinking, I recommend trying to have that exchange with him or her in a non-public forum.

There you have it – my five opinions about how to give legal opinions. I’m interested to hear your opinions on legal opinions. And I am quite open to being convinced that my own opinions are wrong. (Except for number four --- I feel quite certain about that one.)

Comments

"This sort of finger pointing gives further ammunition to non-lawyers who insist that law and politics are indistinguishable. That isn’t true...."

With respect, must beg to differ. What passes for "law" in America has become fiercely partisan, even in the academy. Liberals champion a "living Constitution," which is hard to distinguish from no constitution at all. Pandering to the Koch brothers and their rapacious allies, modern conservatives have perverted originalism to the point where it is reliably outcome-driven. Candidates for the bench are no longer even considered unless they are known as reliable partisan hacks. Antonin Scalia was about as faithful to his originalism as Tiger Woods was to ex-wife Elin, and judging by his tweets, it is difficult to tell where Randy Barnett's politics end and his constitutional interpretation begins.

When you can predict the outcome of a case by knowing only who put the judge on the bench, "law" ceases to be anything but partisan politics. Election law and hot-button social questions have always invited partisanship, but the Roberts Court has added business and civil rights law to that list, all but defenestrating the Bill of Rights in the process.

We presently endure an oligarchy, where the oligarchs and their handmaidens control the courts. Bivens has been narrowed into oblivion, and the Seventh Amendment jury trial has become an anachronism. The quality of justice you get is a function of your exchequer, as the rights of poor men are routinely interred in non-precedential (unpublished) opinions. Those who still think that we enjoy the rule of law have been cloistered in their ivory towers too long.

Posted by: Scalia2.0 | Jul 21, 2017 8:58:00 AM

My suggestion is that professor-pundits give some thought to whether they’re advocating or they’re assisting the audience to make up its own mind—and to be transparent about that. It might help to invoke some standards from legal ethics. In an adversarial setting, an advocate can tell his or her side of the story so long as they don’t misrepresent fact or law. But in ex parte settings the advocate “shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” (MR 3.3(d)) It’s fine for professor-pundits to adopt either role, or to do a little of both, depending on the situation. But it’s disappointing to see a professor-pundit presented as the latter and acting as the former.